Singh v Minister for Immigration

[2019] FCCA 2444

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 2444

Catchwords:
MIGRATION – Migration Act 1958 (Cth) – Student visa application – application for judicial review of decision of Administrative Appeals Tribunal which affirmed the decision of a Delegate of the Minister for Immigration not to grant the Student visa to the applicant – applicant was not enrolled in a full-time registered course of study at the time of Delegate’s decision – no jurisdictional error identified by the applicant – application for judicial review dismissed.

Legislation:

Migration Act 1958 (Cth), s.359AA

Migration Regulations 1994 (Cth)

Applicant: SARBJIT SINGH

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3490 of 2018

Judgment of: Judge Dowdy

Hearing date: 16 August 2019

Delivered at: Sydney

Delivered on: 16 August 2019

REPRESENTATION

The Applicant appeared
in person.

Counsel for the First Respondent: Mr S. Valliappan

Solicitors for the First Respondent: DLA Piper

THE ORDERS OF THE COURT ARE AS FOLLOWS:

1. The Application filed in this Court on 12 December 2018 is dismissed.

2. The Applicant is to pay the First Respondent’s cost of the proceeding in the sum of $5,000. 

3. The name of the First Respondent be amended from ‘Minister for Home Affairs’ to ‘Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs’.

4. Pursuant to Rule 36.03(b) of the Federal Court Rules 2011 (Cth) the Applicant have up to and including 27 September 2019 to file any Notice of Appeal from orders 1 and 2 above in the Federal Court of Australia.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3490 of 2018

SARBJIT SINGH

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

EX TEMPORE

(Revised from Transcript)

Introduction

1. The Applicant is a male citizen of India aged 34 years, having been born on 30 December 1984.

2. By Application filed in this Court on 12 December 2018 he seeks to impliedly quash and have re-determined the decision of the Second Respondent, the Administrative Appeals Tribunal (Tribunal), dated 5 December 2018 which affirmed the decision of the Delegate (Delegate) of the First Respondent, the Minister for Immigration and Border Protection (Minister), dated 7 June 2017 refusing to grant to him a Student (Temporary) (Class TU) (Subclass 500) visa (Student visa).

Background

1. The Applicant was granted a dependant Student visa offshore on 9 February 2015 which was valid until 30 August 2017. The primary Student visa holder of that Student visa was his then wife. The Applicant arrived in Australia on 3 March 2015. He lodged his Student visa application in his own right on 21 February 2017, having eight days before enrolled in a General English (Elementary to Upper Intermediate) course at Australis Institute of Technology (Australis and Australis enrolment).

Decision of Delegate

1. In his Decision Record dated 7 June 2017 the Delegate noted that the Applicant was enrolled at Australis. However, the Delegate found that the Applicant was not a genuine student as required by cl.500.212 of Sch.2 to the Migration Regulations 1994 (Cth) (Regulations), but rather that he appeared to be using the Student visa program as a means of maintaining ongoing residence in Australia and did not genuinely intend to stay in Australia temporarily.

2. The Delegate noted that the Applicant had never departed Australia for a period of 721 days since his arrival, which raised concerns that he had no significant ties to India. Further, the Australis enrolment extended to March 2018 which meant that the Applicant would have been in Australia for three years at the end of that course and that he had:

   Failed to provide any substantial details of how [the Australis enrolment] would help him to achieve his future employment and career goals upon the return to his homeland.

3. Accordingly, the Delegate refused to grant the Student visa to the Applicant.

Decision of Tribunal

1. The Applicant lodged his application for merits review with the Tribunal on 21 June 2017 and gave a copy of the Decision Record of the Delegate to the Tribunal at the same time.

2. By letters dated 28 September 2018 and 30 November 2018 the Tribunal asked the Applicant to provide a copy of his current Certificate of Enrolment three days before the Tribunal hearing, which ultimately took place on 5 December 2018, when the Applicant appeared before it to give evidence and present arguments.

3. Unfortunately for the Applicant, by this time he had stopped attending the Australis course, and Australis had cancelled the Australis enrolment, so that he was not enrolled in any full-time registered course of study at the date of the Tribunal hearing, as was required of him to satisfy cl.500.211(a) of the Regulations, to which the Tribunal accordingly turned its primary attention. At [10] and [11] of its Decision Record the Tribunal recorded giving to the Applicant under s.359AA of the Act the following particulars:

   [10] The Tribunal put particulars of information to the applicant from a recent check of the Provider Registration and International Student Management System (PRISMS) to the applicant, pursuant to s.359AA of the Act, after first explaining to him this information would, subject to his comment and response, provide the reason, or part of the reason, for affirming the decision under review.  The Tribunal explained to the applicant that he could request time to consider his response and that the Tribunal would consider any such request.

   [11] The particulars of the information put to the applicant was:

   ·Information provided by the Commonwealth Department of Education and Training indicates the applicant’s enrolment in a General English course, which was to from March 2017, was cancelled.

   ·The applicant has not provided evidence of enrolment in any other registered course of study.

4. At [15] of its Decision Record the Tribunal recorded as follows:

   [15] The applicant did not request further time to consider his response and made the following comments:

   ·He was generally going to college every day until his visa was refused and then he stopped attending the course;

   ·He would benefit from improved English language skills whether he remains in Australia or returns to India;

   ·His ex-wife looked after visa related matters prior to their separation and since then he has had to look after them on his own;

   ·He was working until his visa was refused and since then has lived with friends who provide him with accommodation, food and financial support in return for him doing all of the cooking and other housework;

   ·He said if the Tribunal will help him get a visa he would then continue with his English language studies.  

5. From [17] – [23] of its Decision Record the Tribunal recorded its consideration of the claims and evidence before it, and at [23] found as follows:

   [23] The Tribunal finds the applicant ceased study in a General English course provided by Australis Institute of Technology and Education in or around June 2017 and that his enrolment in that course was subsequently cancelled by the employment provider. There is no evidence before the Tribunal that the applicant has a current offer of enrolment in any course. The Tribunal has considered these factors and all the other evidence provided by the applicant during the hearing and in the Department and Tribunal files.

6. It followed that the Applicant did not satisfy cl.500.211(a) of the Regulations and the Tribunal accordingly affirmed the decision of the Delegate not to grant the Student visa to the Applicant.

Grounds of Attack on Tribunal Decision in this Court

1. The Grounds relied upon by the Applicant are as follows: 

   1. I have applied for student visa, but I got rejected due to my circumstances.

   2. I was on spouse visa from starting but unfortunately I got divorced, so I tried to apply [for] my student visa.

   3. As there wasn’t any relief for me.

Consideration

1. First, none of these Grounds make a meaningful contention that the decision of the Tribunal is affected by jurisdictional error.

2. Second, the simple fact of the matter is that, as was conceded by the Applicant at the Tribunal hearing, he was not able to satisfy the primary criteria for the grant of the Student visa at the time of decision, namely cl.500.211(a) of the Regulations, because he did not have a current enrolment in a full-time registered course of study. It follows in my view that the Tribunal was required to affirm the Delegate’s decision under review.

3. For completeness I note that at [7] of the Decision Record of the Tribunal it is stated that the Applicant was 48 years of age. That was not the case as he was not then so aged. It may be that the reference to 48 years is a typographical error.  It could be the case that in certain contexts a mistake as to the age of an applicant might have a material bearing on a decision, if it was truly believed that the applicant was older by some 14 years than he actually was in truth. However, on any basis the reference to the Applicant being 48 years of age can have had no material bearing on the Tribunal decision in this case.

Conclusion

1. The Applicant has failed to establish that the decision of the Tribunal is affected by jurisdictional error and the Application filed in this Court is to be dismissed.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Judge Dowdy

Associate: 

Date: 30 August 2019